Vanderbilt Law Review

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The United States Congress embarked on a new era in the regulation of interstate commerce when it created the Interstate Commerce Commission ("ICC") in 1887 to regulate railroad traffic.' A major purpose of the ICC regulatory framework, as amended by the Transportation Act of 1920, was to preempt actions by state and local authorities that prevented railroads from abandoning unprofitable lines. When Congress passed the Transportation Act, 252,588 miles of track criss-crossed the United States; by 1990 the number of rail- way miles had decreased by almost half.

Although the relative ease with which railroads abandoned unprofitable lines augmented their profitability, state and local governments realized that corridors assembled in the mid-nineteenth century were extremely expensive to reassemble once abandoned. Local authorities began considering other public uses for railroad rights-of-way, such as roads or highways, the placement of utility lines, or recreational trails.

In an effort to conserve railway corridors as a national resource, both for future transportation use and for current use as recreational trails, Congress included unique provisions within the Railroad Revitalization and Regulatory Reform Act of 1976 ("4-R Act") and the National Trails Systems Act Amendments of 1983 ("Rails-to-Trails Act"). Specifically, the Rails-to-Trails Act asserted federal control over the disposition of abandoned railroad rights-of-way and promoted alternative uses for railway corridors.

The abandonment of rail service on a railway line requires the approval of the Surface Transportation Board ("STB"), the successor to the ICC. Until the STB grants such approval, the railway line is considered part of the national transportation system. The requirement of STB approval can present a direct conflict with state property law. What is the result when a railroad right-of-way, held by the railroad in the form of an easement, has purportedly been abandoned under state property law before the STB has given permission to abandon rail service? Does the easement terminate, thereby dispossessing the railroad (or the railroad's successor) of its property interest, or does federal law perpetuate the easement under the jurisdiction of the STB, thus preserving the right-of-way for future transportation use? If the easement continues to exist, does the establishment of a recreational trail upon the railroad easement constitute a taking under the Fifth Amendment?

This Note addresses these questions and advocates, despite a recent Federal Circuit Court of Appeals decision to the contrary, that railroad rights-of-way should not be considered abandoned pursuant to state property law while the rail corridor is still subject to the jurisdiction of the STB. The proposition that federal law preempts state law in this situation is supported by explicit congressional intent to subordinate state property law, and is founded on the Supremacy Clause and the federal government's power to regulate interstate commerce under the Commerce Clause. In addition, this Note concludes that the perpetuation by federal law of an easement underlying a railroad right-of-way-and the establishment of a recreational trail upon the easement-should not constitute a taking of property from the owner of the servient estate under the Fifth Amendment.